Amended in Senate June 16, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2888


Introduced bybegin delete Committee on Agriculture (Assembly Members Dodd (Chair), Gallagher (Vice Chair), Eggman, Gray, Grove, Irwin, Jones-Sawyer, Mathis, and Quirk)end deletebegin insert Assembly Member Doddend insert

February 29, 2016


begin delete An act to amend Section 4401.5 of the Food and Agricultural Code, relating to fairs. end deletebegin insertAn act to amend Section 1203 of the Penal Code, relating to probation.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2888, as amended, begin deleteCommittee on Agricultureend delete begin insertDoddend insert. begin deleteState-supported fairs: food and fiber exhibits. end deletebegin insertProbation: sex crimes.end insert

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Existing law defines probation to mean the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. Existing law authorizes a court to grant probation for some, but not all, felony convictions, as enumerated.

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This bill would prohibit a court from granting probation to a defendant who is convicted of committing specified acts of rape, sodomy, oral copulation, or sexual penetration upon the victim who was prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, or was unconscious, as specified under those provisions.

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Existing law requires the Secretary of Food and Agriculture to expend up to $100,000 in any fiscal year for an exhibit or exhibits at a state-supported fair that demonstrates the process of production and use of food and fiber and to annually provide for a conference of fair judges to aid the Department of Food and Agriculture in prescribing regulations for the judging of exhibits and for the premiums paid for all classes, sections, and types of exhibits, and authorizes the secretary to expend up to $15,000 in any fiscal year for these purposes.

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This bill would instead authorize rather than require the secretary to perform the above-specified functions.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1begin insert

begin insertSECTION 1.end insert  

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begin insertSection 1203 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

1203.  

(a) As used in this code, “probation” means the
4suspension of the imposition or execution of a sentence and the
5order of conditional and revocable release in the community under
6the supervision of a probation officer. As used in this code,
7“conditional sentence” means the suspension of the imposition or
8execution of a sentence and the order of revocable release in the
9community subject to conditions established by the court without
10the supervision of a probation officer. It is the intent of the
11Legislature that both conditional sentence and probation are
12authorized whenever probation is authorized in any code as a
13sentencing option for infractions or misdemeanors.

14(b) (1) Except as provided in subdivision (j), if a person is
15convicted of a felony and is eligible for probation, before judgment
16is pronounced, the court shall immediately refer the matter to a
17probation officer to investigate and report to the court, at a specified
18time, upon the circumstances surrounding the crime and the prior
19history and record of the person, which may be considered either
20in aggravation or mitigation of the punishment.

21(2) (A) The probation officer shall immediately investigate and
22make a written report to the court of his or her findings and
23recommendations, including his or her recommendations as to the
24granting or denying of probation and the conditions of probation,
25if granted.

26(B) Pursuant to Section 828 of the Welfare and Institutions
27Code, the probation officer shall include in his or her report any
28information gathered by a law enforcement agency relating to the
29taking of the defendant into custody as a minor, which shall be
P3    1considered for purposes of determining whether adjudications of
2commissions of crimes as a juvenile warrant a finding that there
3are circumstances in aggravation pursuant to Section 1170 or to
4deny probation.

5(C) If the person was convicted of an offense that requires him
6or her to register as a sex offender pursuant to Sections 290 to
7290.023, inclusive, or if the probation report recommends that
8registration be ordered at sentencing pursuant to Section 290.006,
9the probation officer’s report shall include the results of the
10State-Authorized Risk Assessment Tool for Sex Offenders
11(SARATSO) administered pursuant to Sections 290.04 to 290.06,
12inclusive, if applicable.

13(D) The probation officer may also include in the report his or
14her recommendation of both of the following:

15(i) The amount the defendant should be required to pay as a
16restitution fine pursuant to subdivision (b) of Section 1202.4.

17(ii) Whether the court shall require, as a condition of probation,
18restitution to the victim or to the Restitution Fund and the amount
19thereof.

20(E) The report shall be made available to the court and the
21prosecuting and defense attorneys at least five days, or upon request
22of the defendant or prosecuting attorney nine days, prior to the
23time fixed by the court for the hearing and determination of the
24report, and shall be filed with the clerk of the court as a record in
25the case at the time of the hearing. The time within which the report
26shall be made available and filed may be waived by written
27stipulation of the prosecuting and defense attorneys that is filed
28with the court or an oral stipulation in open court that is made and
29entered upon the minutes of the court.

30(3) At a time fixed by the court, the court shall hear and
31determine the application, if one has been made, or, in any case,
32the suitability of probation in the particular case. At the hearing,
33the court shall consider any report of the probation officer,
34including the results of the SARATSO, if applicable, and shall
35make a statement that it has considered the report, which shall be
36filed with the clerk of the court as a record in the case. If the court
37determines that there are circumstances in mitigation of the
38punishment prescribed by law or that the ends of justice would be
39served by granting probation to the person, it may place the person
40on probation. If probation is denied, the clerk of the court shall
P4    1immediately send a copy of the report to the Department of
2Corrections and Rehabilitation at the prison or other institution to
3which the person is delivered.

4(4) The preparation of the report or the consideration of the
5report by the court may be waived only by a written stipulation of
6the prosecuting and defense attorneys that is filed with the court
7or an oral stipulation in open court that is made and entered upon
8the minutes of the court, except that a waiver shall not be allowed
9unless the court consents thereto. However, if the defendant is
10ultimately sentenced and committed to the state prison, a probation
11report shall be completed pursuant to Section 1203c.

12(c) If a defendant is not represented by an attorney, the court
13shall order the probation officer who makes the probation report
14to discuss its contents with the defendant.

15(d) If a person is convicted of a misdemeanor, the court may
16either refer the matter to the probation officer for an investigation
17and a report or summarily pronounce a conditional sentence. If
18the person was convicted of an offense that requires him or her to
19register as a sex offender pursuant to Sections 290 to 290.023,
20inclusive, or if the probation officer recommends that the court,
21at sentencing, order the offender to register as a sex offender
22pursuant to Section 290.006, the court shall refer the matter to the
23probation officer for the purpose of obtaining a report on the results
24of the State-Authorized Risk Assessment Tool for Sex Offenders
25administered pursuant to Sections 290.04 to 290.06, inclusive, if
26applicable, which the court shall consider. If the case is not referred
27to the probation officer, in sentencing the person, the court may
28consider any information concerning the person that could have
29been included in a probation report. The court shall inform the
30person of the information to be considered and permit him or her
31to answer or controvert the information. For this purpose, upon
32the request of the person, the court shall grant a continuance before
33the judgment is pronounced.

34(e) Except in unusual cases where the interests of justice would
35best be served if the person is granted probation, probation shall
36not be granted to any of the following persons:

37(1) Unless the person had a lawful right to carry a deadly
38weapon, other than a firearm, at the time of the perpetration of the
39crime or his or her arrest, any person who has been convicted of
40arson, robbery, carjacking, burglary, burglary with explosives,
P5    1rape with force or violence, torture, aggravated mayhem, murder,
2attempt to commit murder, trainwrecking, kidnapping, escape from
3the state prison, or a conspiracy to commit one or more of those
4crimes and who was armed with the weapon at either of those
5times.

6(2) Any person who used, or attempted to use, a deadly weapon
7upon a human being in connection with the perpetration of the
8crime of which he or she has been convicted.

9(3) Any person who willfully inflicted great bodily injury or
10torture in the perpetration of the crime of which he or she has been
11convicted.

12(4) Any person who has been previously convicted twice in this
13state of a felony or in any other place of a public offense which,
14if committed in this state, would have been punishable as a felony.

15(5) Unless the person has never been previously convicted once
16in this state of a felony or in any other place of a public offense
17which, if committed in this state, would have been punishable as
18a felony, any person who has been convicted of burglary with
19explosives, rape with force or violence, torture, aggravated
20mayhem, murder, attempt to commit murder, trainwrecking,
21extortion, kidnapping, escape from the state prison, a violation of
22Section 286, 288, 288a, or 288.5, or a conspiracy to commit one
23or more of those crimes.

24(6) Any person who has been previously convicted once in this
25state of a felony or in any other place of a public offense which,
26if committed in this state, would have been punishable as a felony,
27if he or she committed any of the following acts:

28(A) Unless the person had a lawful right to carry a deadly
29weapon at the time of the perpetration of the previous crime or his
30or her arrest for the previous crime, he or she was armed with a
31weapon at either of those times.

32(B) The person used, or attempted to use, a deadly weapon upon
33a human being in connection with the perpetration of the previous
34crime.

35(C) The person willfully inflicted great bodily injury or torture
36in the perpetration of the previous crime.

37(7) Any public official or peace officer of this state or any city,
38county, or other political subdivision who, in the discharge of the
39duties of his or her public office or employment, accepted or gave
P6    1or offered to accept or give any bribe, embezzled public money,
2or was guilty of extortion.

3(8) Any person who knowingly furnishes or gives away
4phencyclidine.

5(9) Any person who intentionally inflicted great bodily injury
6in the commission of arson under subdivision (a) of Section 451
7or who intentionally set fire to, burned, or caused the burning of,
8an inhabited structure or inhabited property in violation of
9subdivision (b) of Section 451.

10(10) Any person who, in the commission of a felony, inflicts
11great bodily injury or causes the death of a human being by the
12discharge of a firearm from or at an occupied motor vehicle
13proceeding on a public street or highway.

14(11) Any person who possesses a short-barreled rifle or a
15short-barreled shotgun under Section 33215, a machinegun under
16Section 32625, or a silencer under Section 33410.

17(12) Any person who is convicted of violating Section 8101 of
18the Welfare and Institutions Code.

19(13) Any person who is described in subdivision (b) or (c) of
20Section 27590.

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(14) Any person who is convicted of violating paragraph (3) or
22(4) of subdivision (a) of Section 261, paragraph (2) or (3) of
23subdivision (a) of Section 262, subdivision (f) or (i) of Section 286,
24subdivision (f) or (i) of Section 288a, or subdivision (d) or (e) of
25Section 289.

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26(f) When probation is granted in a case which comes within
27subdivision (e), the court shall specify on the record and shall enter
28on the minutes the circumstances indicating that the interests of
29justice would best be served by that disposition.

30(g) If a person is not eligible for probation, the judge shall refer
31the matter to the probation officer for an investigation of the facts
32relevant to determination of the amount of a restitution fine
33pursuant to subdivision (b) of Section 1202.4 in all cases where
34the determination is applicable. The judge, in his or her discretion,
35may direct the probation officer to investigate all facts relevant to
36the sentencing of the person. Upon that referral, the probation
37officer shall immediately investigate the circumstances surrounding
38the crime and the prior record and history of the person and make
39a written report to the court of his or her findings. The findings
P7    1shall include a recommendation of the amount of the restitution
2fine as provided in subdivision (b) of Section 1202.4.

3(h) If a defendant is convicted of a felony and a probation report
4is prepared pursuant to subdivision (b) or (g), the probation officer
5may obtain and include in the report a statement of the comments
6of the victim concerning the offense. The court may direct the
7probation officer not to obtain a statement if the victim has in fact
8testified at any of the court proceedings concerning the offense.

9(i) A probationer shall not be released to enter another state
10unless his or her case has been referred to the Administrator of the
11Interstate Probation and Parole Compacts, pursuant to the Uniform
12Act for Out-of-State Probationer or Parolee Supervision (Article
133 (commencing with Section 11175) of Chapter 2 of Title 1 of Part
144) and the probationer has reimbursed the county that has
15jurisdiction over his or her probation case the reasonable costs of
16processing his or her request for interstate compact supervision.
17The amount and method of reimbursement shall be in accordance
18with Section 1203.1b.

19(j) In any court where a county financial evaluation officer is
20available, in addition to referring the matter to the probation officer,
21the court may order the defendant to appear before the county
22financial evaluation officer for a financial evaluation of the
23defendant’s ability to pay restitution, in which case the county
24financial evaluation officer shall report his or her findings regarding
25restitution and other court-related costs to the probation officer on
26the question of the defendant’s ability to pay those costs.

27Any order made pursuant to this subdivision may be enforced
28as a violation of the terms and conditions of probation upon willful
29failure to pay and at the discretion of the court, may be enforced
30in the same manner as a judgment in a civil action, if any balance
31remains unpaid at the end of the defendant’s probationary period.

32(k) Probation shall not be granted to, nor shall the execution of,
33or imposition of sentence be suspended for, any person who is
34convicted of a violent felony, as defined in subdivision (c) of
35Section 667.5, or a serious felony, as defined in subdivision (c) of
36Section 1192.7, and who was on probation for a felony offense at
37the time of the commission of the new felony offense.

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38

SECTION 1.  

Section 4401.5 of the Food and Agricultural Code
39 is amended to read:

P8    1

4401.5.  

(a) The secretary may expend an amount not to exceed
2a total of one hundred thousand dollars ($100,000) in any fiscal
3year for any exhibit or exhibits located on any state-supported fair
4demonstrating, in a creative and innovative manner, the process
5of production and use of food and fiber from the producer to the
6consumer in this state.

7(b) The secretary may annually provide for a conference of fair
8judges to aid the department in prescribing regulations adopted
9pursuant to Section 4501. The secretary may expend up to fifteen
10thousand dollars ($15,000) in any fiscal year for these purposes.

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